Pronouns, Politics, and Tinker: Sixth Circuit Bars Punishment of “Biological Pronouns” Absent Evidence of Disruption or Rights Violations

Introduction

In a high-profile en banc decision, the U.S. Court of Appeals for the Sixth Circuit held that a public school district’s policies may not be enforced to punish students for the “commonplace use of biological pronouns” unless the school can meet Tinker’s demanding standard by showing a reasonable forecast of material disruption to school operations or infringement of the legal rights of others. The dispute arose after a parent asked whether students would be required to use classmates’ preferred pronouns; district counsel replied that intentionally using pronouns contrary to a student’s identity would be discrimination. The organization Defending Education (formerly Parents Defending Education) sued on behalf of parent-members and their children, alleging First Amendment violations.

The case pits two weighty interests against each other: (1) students’ right to express a viewpoint on a live public controversy (sex, gender identity, and pronouns) and (2) schools’ duty to protect students, including transgender and nonbinary students, from bullying and harassment. The Sixth Circuit concluded that on the record presented at the preliminary-injunction stage, the school district failed to satisfy Tinker. The court reversed and remanded with instructions to enter a tailored preliminary injunction protecting the honest, non-abusive use of biological pronouns while preserving the district’s ability to enforce anti-harassment rules against abuse, threats, or true harassment.

Summary of the Opinion

Justiciability: The court held Defending Education likely has associational standing to seek injunctive relief. Its parent-members’ children intend to speak (use biological pronouns), that speech is arguably protected, the policies arguably proscribe it, and there is a credible threat of enforcement. Modest policy amendments did not moot the case because the district continued to reserve authority to punish “misgendering” when deemed bullying or harassment.
Merits — School Speech Framework: The speech is “personal expression,” not school-sponsored speech. The district did not argue the Fraser lewdness or Morse drug-advocacy exceptions. The court applied Tinker’s test: schools may restrict student personal speech only if it would materially and substantially disrupt school activities or infringe the legal rights of others.
Application of Tinker: The district produced no evidence that the honest, non-abusive use of biological pronouns would materially disrupt classwork or school order, nor that it would amount to unlawful harassment under Title IX or Ohio law. Because the policies effectively disfavor one side in a public debate (viewpoint concerns), the court demanded a robust evidentiary showing—which was missing.
Compelled Speech: The majority did not decide whether the policies unconstitutionally compel speech (e.g., forcing preferred pronouns), noting the district’s offer of accommodations to avoid pronouns. The court resolved the appeal solely on Tinker.
Remedy and Limits: The court ordered a tailored preliminary injunction: schools may not punish students for the commonplace, honest use of biological pronouns, but may continue to enforce anti-harassment policies against abusive, threatening, or truly harassing conduct.
Other Factors: Loss of First Amendment freedoms is irreparable; the equities and public interest favor protecting constitutional rights while allowing anti-bullying enforcement.

Analysis

Precedents Cited and How They Shaped the Decision

Tinker v. Des Moines (1969): The linchpin. Student personal speech on campus may be curtailed only if it would “materially and substantially disrupt” schoolwork or “impinge upon the rights of other students.” The court emphasized Tinker’s “demanding” nature, especially for speech on public issues, and required concrete, reasonable forecasting—not hunches—of disruption.
Hazelwood (1988): Governs school-sponsored speech tied to curriculum; inapplicable here because the policy reached personal, informal student speech, even extending to certain off-campus/device use.
Fraser (1986) and Morse (2007): Exceptions allowing regulation of lewd/indecent speech and drug-advocacy at school; neither applied to ordinary pronoun usage.
Barnette (1943) and Janus (2018): Compelled speech principles. The majority did not resolve whether the policies compelled speech; Judge Batchelder’s concurrence would decide compelled speech and viewpoint discrimination categorically against the district.
Viewpoint discrimination cases: Matal v. Tam, Iancu v. Brunetti, R.A.V. v. St. Paul, and Rosenberger. The majority underscored that the district’s regime “skews” a public debate by disfavoring a particular perspective (sex as immutable), raising serious constitutional concerns—even though the court ultimately resolved on Tinker grounds.
Sixth Circuit school speech: Barr v. Lafon (upholding Confederate flag restrictions given documented racial disruptions) and Castorina (remanding where evidence of disruption was lacking and potential viewpoint favoritism was present). These cases illustrate that political or controversial speech cannot be restricted absent evidence, and that ad hoc selective bans risk viewpoint discrimination.
“Heckler’s veto” and “victim’s veto”: The court rejected suppression based on mere listener offense (Zamecnik), while recognizing schools’ latitude to address fighting words, threats, or harassing speech directed at particular individuals (Chen).
Title IX standard (Davis v. Monroe County Bd. of Educ.): Student-on-student harassment must be severe, pervasive, and objectively offensive to deny equal access. The record did not show pronoun use meeting this threshold.
Ohio anti-bullying statute: Requires conduct causing harm and creating an intimidating, threatening, or abusive educational environment. The district offered no evidence that honest, non-abusive use of biological pronouns per se satisfies that standard.
Justiciability: Murthy v. Missouri, Susan B. Anthony List, and Sixth Circuit precedents (Christian Healthcare Centers) guided standing (credible threat of enforcement). FBI v. Fikre and Northeast Florida v. Jacksonville informed mootness/voluntary cessation; modest policy edits did not moot where enforcement threatened to continue.
Preliminary injunction standards: Winter (likelihood of success predominates), Roman Catholic Diocese (loss of First Amendment freedoms is irreparable), and Sixth Circuit cases on public interest favoring constitutional rights.

Legal Reasoning

1) Standing and Mootness

The court found Defending Education likely has associational standing: at least one member’s child intends to engage in arguably protected speech (using biological pronouns); the district’s policies arguably prohibit it; a credible threat of enforcement exists, evidenced by counsel’s warning and refusal to disavow enforcement for intentional, repeated usage. The district’s lack of prior enforcement did not negate the credible threat, especially with no contrary history of permitting the speech.

Amendments to the policies did not moot the controversy. The district still asserted authority to punish “misgendering” if deemed bullying/harassment, preserving a live dispute. Voluntary cessation requires more than minor edits when enforcement remains reasonably expected.

2) Categorizing the Speech and Choosing the Standard

The court classified pronoun usage as “personal expression,” not school-sponsored speech. Fraser’s lewdness and Morse’s drug-speech exceptions did not apply. Barnette’s compelled speech principle was argued, but the court decided under Tinker because the district suggested accommodations to avoid pronouns, and because the record did not require resolving compulsion at this stage.

3) Applying Tinker’s Two Pathways

Material and substantial disruption: The district offered no evidence that students’ honest use of biological pronouns would disrupt classwork or school order. The court distinguished abusive invective or taunting (which schools may regulate) from ordinary pronoun usage employed to express a good-faith belief about sex. Mere listener offense or discomfort is not enough to silence political speech.
Infringement of legal rights: The record did not show that pronoun usage, without more, would constitute Title IX harassment (as severe, pervasive, and objectively offensive) or Ohio “harassment, intimidation, or bullying” (requiring harm plus a hostile environment). Schools retain authority to punish true harassment, threats, and abuse directed at particular students.

The court also emphasized the viewpoint tilt: policies disallowing biological pronouns while permitting preferred pronouns skew a public debate. Against that backdrop, Tinker demands an especially strong evidentiary showing. The district had none.

4) Remedy and Other Factors

Because a likely First Amendment violation was shown, irreparable harm and public interest factors favored injunctive relief. The court ordered a tailored preliminary injunction shielding students from punishment for the honest, non-abusive use of biological pronouns, while preserving the district’s power to discipline bullying, harassment, threats, and abuse on the same terms as for any other student.

The Separate Opinions: How They Reframe or Extend the Holding

Judge Batchelder (concurring): Would go further and decide that compelled speech and viewpoint discrimination are categorically forbidden in public schools; Tinker does not justify either. Even substantial evidence of disruption could not validate compelled pronoun use or viewpoint-based bans.
Judge Kethledge (concurring): Critiques modern free-speech doctrine’s ad hoc balancing; advocates anchoring analysis in historic common-law rules. Under common law, honest opinions were protected; dignitary offense alone was not a cognizable harm; in loco parentis today is narrower than in earlier eras. Encourages voluntary civility (e.g., using names) beyond what the law compels.
Judges Thapar and Nalbandian (concurring): Would resolve the case on viewpoint discrimination grounds: schools cannot discriminate against one side of a public debate (sex as immutable) by banning only pronouns reflecting that view. Tinker should not leave political speech to case-by-case disruption predictions when viewpoint favoritism is evident.
Judge Bush (concurring): Offers a sweeping historical analysis of language regulation, arguing that government cannot regulate grammar or compel new pronoun usage, and that societal language shifts must occur through persuasion, not coercion. Emphasizes limits of in loco parentis and warns against recasting ordinary language as “bullying.”
Judge Stranch (dissenting, joined by six judges): Would affirm denial of the preliminary injunction. She views the policy as a viewpoint-neutral regulation of a disruptive mode of expression (intentional, repeated non-preferred pronoun use), not compelled speech. In her view, Tinker was met: the district could reasonably forecast substantial disruption to affected students’ education (drawing on record concessions and common sense). She criticizes the majority for introducing a “political speech” sliding scale that demands more evidence than Tinker requires and for underappreciating the school’s role in preventing bullying and harassment.

Impact and Forward-Looking Implications

Immediate Effects in the Sixth Circuit (KY, MI, OH, TN)

Public schools cannot punish students simply for the honest, non-abusive use of “biological pronouns” without concrete evidence satisfying Tinker. Mere listener offense or generalized concern is insufficient.
Anti-harassment policies must be narrowly enforced against abusive, targeted, threatening, severe, or pervasive conduct—on the same terms regardless of the viewpoint expressed.
Policies phrased broadly to treat “misgendering” as per se bullying or harassment are vulnerable unless tied to proof of harmful effects meeting statutory or Title IX thresholds.
Tailored accommodations (e.g., using names rather than pronouns) remain a practical tool but cannot be enforced through compelled speech or viewpoint favoritism.

Longer-Term Doctrinal Significance

Viewpoint discrimination in schools: Several concurrences urge a categorical rule that viewpoint discrimination is impermissible even under Tinker when speech involves public concerns. This invites future litigants to press for broader holdings and may deepen circuit splits.
Compelled speech: Though not decided, multiple opinions signal that compelled pronoun usage in K–12 would likely violate Barnette/Janus principles. Expect targeted litigation and policy revisions.
Evidence burden under Tinker: The majority’s emphasis on evidence—and the elevation of scrutiny when viewpoint concerns exist—will shape how districts assemble records (incidents, prior disruptions, severity/pervasiveness) before enforcing pronoun rules.
Title IX interplay: The court aligned student speech standards with Davis’s stringent harassment threshold. Policies adopting lower harassment thresholds than Title IX for speech enforcement risk constitutional challenge.
State law patchwork: Some states protect refusal to use preferred pronouns; others restrict certain pronoun practices. This decision reinforces that constitutional limits apply regardless of state policy preferences.
Supreme Court watch: The opinion’s breadth, deep separate writings, and ongoing national debate over pronouns and school speech increase the chances of eventual Supreme Court review, especially on viewpoint discrimination’s contours within Tinker.

Practical Compliance Guidance for School Districts

Anchor speech restrictions in specific, evidence-backed findings of disruption or rights violations; document prior incidents, severity, pervasiveness, and effects on access to education.
Draft policies that regulate conduct (threats, targeted harassment, true abuse) rather than viewpoints; avoid per se rules that label ordinary pronoun usage as “harassment.”
Train staff to distinguish:
- Honest, non-abusive pronoun usage (protected absent evidence of disruption), from
- Targeted, repeated, intentional conduct that is severe/pervasive and creates a hostile environment (regulable).
Offer accommodations (e.g., using names) without compelling speech or penalizing honest viewpoints; ensure disciplinary guidance reflects intent, repetition, targeting, and effect.
When in doubt, focus on time, place, and manner adjustments (classroom management) rather than content or viewpoint restrictions.

Complex Concepts, Simplified

Tinker’s rule in plain terms: Schools can stop student speech only if they reasonably expect it will seriously disrupt school or violate others’ legal rights. Being controversial or causing discomfort isn’t enough.
Personal vs. school-sponsored speech: Personal speech (hallway chatter, shirts) gets more protection than school-sponsored speech (school newspaper, class assignments), which schools can shape for legitimate educational reasons.
Viewpoint vs. content discrimination: Content discrimination targets subjects (e.g., all drug talk). Viewpoint discrimination targets sides of a debate (e.g., allow anti-drug talk but ban pro-drug talk). Viewpoint bias is the most suspect.
Compelled speech: Government cannot force you to say something you don’t believe (like a pledge or particular pronoun), especially on political, religious, or moral matters.
“Heckler’s veto” vs. “victim’s veto”: Heckler’s veto means silencing a speaker because others might react badly—generally not allowed. Schools can, however, stop threats, fighting words, or true harassment aimed at specific people (sometimes called a “victim’s veto” in the school context).
Associational standing: An organization can sue for its members if at least one member faces injury, the suit aligns with the organization’s mission, and individual participation isn’t required.
Voluntary cessation/mootness: Changing a policy mid-suit doesn’t automatically end a case; courts ask whether the challenged conduct can reasonably be expected to recur.
Title IX harassment threshold: Student-on-student harassment is actionable only if so severe, pervasive, and objectively offensive that it effectively denies the victim equal access to education.
In loco parentis today: Schools act in the place of parents during the day, but compulsory education and diverse values mean schools don’t have unlimited authority to dictate students’ expression on public issues.

Conclusion

Defending Education v. Olentangy Local School District is a watershed student speech decision in the Sixth Circuit. The court reaffirmed that public schools may not penalize students for expressing a viewpoint on matters of public concern—here, by using biological pronouns—without meeting Tinker’s exacting standard. The decision also forcefully cautions against viewpoint skewing in school speech regulation and signals skepticism toward compelled pronoun usage. At the same time, the court preserved schools’ authority to combat true harassment, bullying, and threats.

The separate opinions reveal fault lines likely to shape future litigation: whether viewpoint discrimination is categorically barred in the K–12 setting for public-issue speech, how (and whether) compelled speech principles apply to pronoun policies, and the role of historical common-law rules in structuring First Amendment doctrine. For now, districts in the Sixth Circuit should recalibrate policies to focus on concrete harms and hostile environment standards, ensure neutrality across viewpoints, and rely on time, place, and manner tools and accommodations. The opinion’s careful, evidence-centered approach both vindicates free speech values and preserves space for schools to protect all students from genuine abuse.